A 15-year-old constitutional revolution

The Israeli public has not yet grasped the idea that constitutional judicial review is an integral feature of advanced democracy.

This month marks 15 years since the Supreme Court's most important judicial declaration. It ruled then that it has the power to invalidate "regular" Knesset legislation that conflicts with the provisions of constitutional Basic Laws. This ruling followed the passage of the Basic Law on the Human Dignity and Freedom and the Basic Law on the Freedom of Occupation three years earlier, and it created a constitutional revolution.

It was handed down on November 9, 1995, five days after the assassination of Prime Minister Yitzhak Rabin. But the reaction on the part of the media and the public was so tepid that some suggested the court chose the timing of this declaration deliberately so that it would be overshadowed by attention to Rabin's murder. Justice Aharon Barak, who had assumed the post of president of the court a few months earlier, rejected this notion in a series of talks we had, in which we were joined by my colleague Ariel Bendor, following Barak's 2006 retirement from the high court.

Barak said that the ruling, handed down in a case involving United Mizrahi Bank, was handed down near the end of the three-month deadline given retiring justices to complete their judicial rulings. It was not appropriate, he added, for retiring Supreme Court President Meir Shamgar not to write an opinion on such a fundamental issue.

In the 15 years that have since passed, the Israeli public has not internalized the idea that constitutional judicial review of the substance of laws, meaning the courts' power to invalidate unconstitutional legislation, is a feature of advanced democracies. In our conversations with Barak, he noted that every time the court decides that a law is unconstitutional, the public reacts "as if they had a tooth pulled," and invalidating a law is considered a "dramatic" event. In Israel, at least, but not in the United States, Germany, Canada and Latvia, among other examples.

The Supreme Court, which in practice is the only court that invalidates laws, imposed limitations on itself, recognizing the Knesset's broad "room for maneuver" in shaping the country's laws. Since 1995, the high court has only invoked its authority to invalidate legislative provisions eight times. With the exception of one case, this authority has been exercised by expanded judicial panels in which additional justices have ruled on the decision. The cases have primarily involved a substantial infringement of human rights as defined in the Basic Law on Human Dignity and Freedom and the Basic Law on Freedom of Occupation.

Among the most notable of these cases was one involving a law that permitted detaining soldiers for extended periods of time without bringing them before a judge. Another involved an order, which for security reasons was handed down in a suspect's absence, that extended the period of his detention. A third case considered the propriety of establishing a private prison in which the employees were granted powers that infringed upon individual human dignity.

In recounting instances of judicial intervention, one should not overlook instances in which the High Court of Justice refrained from invalidating legislation even if it infringed upon fundamental rights. Among them were the rulings confirming the constitutionality of the Tal Law on drafting yeshiva students and the law denying permanent residency to Palestinians married to Israeli citizens.

The constitutional revolution, which is based on recognition of rights contained in constitutional Basic Laws and the existence of judicial review over violations of these rights, is far from complete. A total revolution will only take place if additional Basic Laws are passed explicitly recognizing the right to equality, freedom of expression, the right to receive certain information and other social rights. A lack of reluctance on the part of the High Court of Justice to invalidate laws that disproportionately infringe upon fundamental rights is already an important aspect of this revolution.

In the meantime, the constitutional revolution is limping along and the path to constitutional democracy is still long. Nonetheless, there appears to be no turning back from the milestones that have been laid, even if there are Knesset members who frequently seek such regression through proposed legislation.